$9M Sanctions Against Florida Tobacco Lawyers for Frivolous Claims

On October 18, two Florida lawyers were ordered to pay more than $9 million in sanctions for pursuing over a thousand nonviable claims in tobacco litigation. The four-judge panel for the Middle District of Florida found that Norwood Wilner and Charlie Farah undermined the “integrity and trust” of the judicial process on a “breathtaking scale” by pursuing 1,250 meritless lawsuits.

Of those 1,250 cases, 588 were complaints involving dead plaintiffs, 572 involved plaintiffs who never authorized the attorneys to file lawsuits, 15 were unauthorized, 18 involved plaintiffs who weren’t even smokers, 36 were on behalf of plaintiffs who never lived in Florida, and 28 that were previously adjudicated.

The litigation giving rise to the sanctions arose out of the Engle class action. In 1997, a Florida jury ruled against tobacco companies in Florida state court, finding in favor of the Engle class. The Florida Supreme Court, however, decertified the class and gave the plaintiffs one year to file individual lawsuits. Wilner and Farah filed 3,700 of these individual complaints and eventually reached a $100 million settlement with the tobacco companies. The federal court overseeing the settlement appointed the U.S. Attorney as a special master to investigate the lawyers’ conduct.

The 148-page opinion lambasted the attorneys for violating Fed. R. Civ. P. 11, which authorizes sanctions for filing meritless pleadings, 28 U.S.C. § 1927, which imposes sanctions against lawyers who vexatiously drag out proceedings. Moreover, the attorneys’ conduct appears to have violated numerous rules of the The Florida Bar’s Professional Conduct including, but not limited to the rules that require lawyers to communicate with their clients, file meritorious actions, and conduct themselves with candor toward the tribunal. The court has referred the matter to the The Florida Bar and it remains to be seen how The Florida Bar will proceed.

The immense monetary sanction was the result of the court’s calculation of $6,983.42 per frivolous case, reflecting of the cost of the waste of the court’s resources, plus another  $435,129.12, for the special master’s time. The opinion explains that the sanction was imposed to compensate the public for the waste of public resources resulting from the frivolous lawsuits. Moving forward, the size of the sanction is a warning sign to plaintiffs’ lawyers about filing and maintaining meritless cases.

Read the full opinion here.

Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Read the full opinion here.